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I tweet what I like

The events surrounding the controversial racial remarks published on the personal social media accounts of various well-known offenders serve as useful case studies illustrating not only the racial tensions which persist in modern-day South Africa, but also the influence of social media and the conflation of one’s professional life and social life. The recent spate of racist twitter and Facebook rants has not only caused a social media uproar but has also placed the spotlight on the wider employment law ramifications of an employee’s conduct on their personal social media accounts.

SOCIAL MEDIA MISCONDUCT

The dismissal of employees on the basis of their misconduct on social media platforms, is a some-what novel phenomenon in South Africa and the jurisprudence surrounding this area of the law, minimal. The Council for Conciliation Mediation and Arbitration (“CCMA”) and the Labour Court has grappled with employment issues relating social media misconduct and have confirmed the employer’s rights and interests in taking disciplinary action against employees on

that basis. The internet has caused for faster circulation and consumption of information and as such the misconduct of an employee on a social media platform can have far reaching consequences for an employer. These consequences may include loss of profits, reputational damage and the risk of being held vicariously liable for the actions of employees.

In Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), employees were dismissed for publishing derogatory comments on Facebook which were found to have brought the company's name into disrepute. A commissioner in the case of Fredericks v Jo Barkett Fashions [2012] 1 BALR 28 (CCMA) confirmed the dismissal of an employee who had made disparaging remarks about the General Manager on Facebook. Other cases where a similar approach was adopted include Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) and Beaurain v Martin NO & Others (1) (2014) 35 ILJ 2443 (LC).

In the case of Beaurain it was held that “the internet, unlike the press, is not subject to an editorial policy and as such there is no prospect of a moderator contacting the employer to hear its side of the story.” This might be even more harmful to the employer in instances where the employee occupies a senior position as in the case of Chris Hart. Chris Hart is a senior economist at Standard Bank and is being subjected to disciplinary processes following a tweet in which he expressed that “ 25 years after apartheid ended, the victims are increasing, along with a sense of entitlement and hatred towards minorities.”

In other cases, the Gauteng Department of Sport, Arts, Culture and Recreation has suspended an employee with immediate effect for posting that he wanted to “cleanse South Africa of all white people”. Nicole De Klerk was dismissed just two days into her employment with an advertising agency following a racial slur she allegedly made at a horseracing event which subsequently went viral as those who were involved reported the incident to the Twitter masses including her employer.

The consequences of an employee’s unacceptable behaviour on social media have reportedly been harshly felt by the previous employers of Penny Sparrow. Sparrow published a post which referred to black beach goers as monkeys. Although she resigned from her post, her former employer has had to comment regarding being labelled as “racist” by the public following

Sparrow’s remarks which have, to a certain extant, caused her previous employers reputational harm. It is unknown whether any of the abovementioned dismissals or sanctions will be challenged formally by the relevant employees.

THE IMPORTANCE OF FOLLOWING A SUBSTANTIVE & PROCEDURAL FAIRNESS PROCESS IN CASES OF SOCIAL MEDIA MISCONDUCT

The interests of the employer, in these instances, do not necessarily override the rights of an employee as provided for in terms of the Labour Relations Act 66 of 1995 (hereinafter referred as “the Act”). It is still a requirement that the process adopted in instituting disciplinary action and/or the summary dismissal an employee, must be substantively and procedurally fair. The dictates of procedural fairness require that an investigation into whether grounds for dismissal exist must be undertaken followed the employee being afforded an opportunity to make representations as to why they should not be suspended pending an investigation for the alleged misconduct or why they should not be summarily dismissed, as the case may be. Upon receipt of such representations, the employer must notify the employee of the decision taken to either institute disciplinary proceedings, thereafter to be placed on paid suspension, or to summarily dismiss the employee.

Substantive fairness where social media misconduct is concerned, would require proof of the offence, knowledge of the workplace rule and the reasonableness thereof, consistency in application of the rule and the appropriate sanction to be adopted which could either result in summary dismissal or being placed on a final written warning.

Whether an employee can be dismissed on what is commonly referred to as “twitter rants” and unbecoming behaviour on their social media profile, will depend on the circumstances of the employee’s case. Therefore, a company is better positioned to defend its decided course of action against an employee where it has adopted and implemented a social media policy which clearly defines what would constitute “social media misconduct” and codifies the appropriate sanction which such conduct would attract. Effective education and communication of this policy enables employers to protect their interests and allows for employees to bring their behaviour in line with the policy.

On the other hand, it is not a hard and fast rule that a rule must be in a written form. In Fredericks v Jo Borkett Fashions [2012] 1 BALR 28 (CCMA), the CCMA had found that the employee’s dismissal was substantively fair despite the fact that the company had no existing policy which regulated the use of Facebook at the time. The generally accepted view is that there is certain behaviour which, by its nature, destroys the employment relationship and need not be reduced to writing before an employer can exercise its right to dismiss.

One might find it difficult to find the nexus between one’s employment relationship and a few racist remarks which were made off-duty and from a personal account. In the case of Custance v SA Local Government Bargaining Council & Others the Labour Court had to consider whether the dismissal of an employee who made racist remarks while he was off-duty was fair and held that “the derogatory terms used manifest a deep-rooted racism which has no place in a democratic society. Whether the word was uttered on or off duty was immaterial as it is the attitude that persists which, when on duty, affects the employment relationship.” As such, an employer may exercise its rights to summarily terminate an employee’s employment on the basis of conduct outside the workplace subject to having followed a substantive and procedurally fair process. Employees must be cautioned regarding the misuse of social media in that it is easily accessible and the public can link the views of an employee as being that of their employer based off the principles of brand association. Thus, an employee who has made racist and derogatory remarks on social media can still be disciplined for bringing the company’s name into disrepute even in instances where the employer has not adopted a formal social media policy.

The employer would have to show that the employers conduct has affected its interests. In the case of Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC) the court recognised that there are certain standards of ethics which employees do not need to be reminded of and as such do not have to be encompassed in a employer’s policies. Further, the Act’s Code of Good Practice also recognises the existence of standards that are so well- established that need they not be communicated. Consequently, the dissemination of racist and/or other derogatory remarks may well fall squarely within those standards.

Moreover, employers may find themselves under immense pressure to submit to the demands of third parties, such as the general public, to have those who utter racist remarks formally

dismissed. The case of Lebowa Platinum Mines Ltd v Hill and Mnguni v Imperial Truck Systems Pty) Ltd t/a Imperial Distribution discusses dismissal resulting from pressure from third parties and classifies this type of dismissal as classic dismissal for operational requirements. The reason for this being that the tension caused by the employee’s conduct cannot be alleviated even where the employee brings their behaviour in line with the company policy. Dismissal on these grounds, while considered valid, is however not exempt from the standards of substantive and procedural fairness.

In the UK, whilst their law in terms of social media misconduct is also in the development stages, the EmploymentTribunals take into account various factors in assessing whether a social media- related dismissal is fair. Such factors include:

the nature and severity of the comments made by an employee;

the subject matter of those comments;

the extent of the damage caused to an employer’s reputation;

whether there has been a breach of confidentiality;

whether the employer has a social media policy and whether employees have been given training in that policy;

whether the comments made by an employee were made during working hours and/or using the employer’s equipment; and

whether there are any other mitigating factors.

It has been stated that “employers need to be aware that any decision to dismiss an employee for alleged social media misconduct should be based on a fair and unbiased consideration and assessment of these factors, in order to minimise the chances of being found guilty of an unfair dismissal” (Jennie Atefi: Facebook remarks that justify dismissal,24 October 2014).

Furthermore, in the case of British Waterways Board v Smith (UKEATS/0004/15, 3 August 2015) the employer had a social media policy which prohibited any action which might embarrass it, including the posting of comments. It came to light that the employee had made various inappropriate comments on Facebook some two years earlier which included: “I hate my work” and “It’s not the work it’s the people who ruin it nasty horrible human beings” among other posts wherein he made reference to drinking on the job. The employee argued that some of the

posts were made in jest and that someone had had changed his security settings on Facebook from being a private to a public account, amongst other things. The court found against the employee in this regard and stated that the comments were still made in the public domain irrespective of whether or not the account was private and that same had caused the employer harm in that the public also drew negative inferences surrounding his comments as whole, especially with regard to the posts of drinking on the job.

As such, the court held that the employer had not lost the opportunity to investigate the employee regarding comments made two years before the employee lodged his grievance as he made derogatory comments about fellow employees he had initially lodged a grievance against. Therefore, the Tribunal held that his dismissal was not unfair.

Although the case does stem from the UK, it does serve as a good example of the importance of having a social media policy in place at the workplace and it also serves a warning to employees that even old posts, which are derogatory in nature, may come back to haunt to you although only in limited circumstances.

THINK BEFORE YOU TWEET

Both the employer and employee should beware! Employers are best advised to adopt social media policies which can be used as a point of reference in instances where an employee has acted contrary to it. It is essential that employers ensure that their disciplinary processes produce substantive and procedurally fair results so as to avoid unnecessary concomitant costs of litigation. Development of the policy should be followed by effective communication and education to all employees as well as the dangers associated with the misuse of public platforms.

Similarly, employees should exercise caution before expressing their views, particularly those which are derogatory, on social media platforms and become well-acquainted with their employers social media policy bearing in mind the various repercussions which follow non- compliance with the policy and that they may be charged for bringing the company’s name into disrepute in instances where such a policy is not place.